Conservatives have a legitimate concern about media bias — especially as administered by the social media giants. Suppression of conservative voices is well-documented and has even been instigated by the Biden White House and other agencies of this administration.
But conservatives should be the last ones to curtail freedom of speech and or create broad new government powers that tread upon freedom of speech and the press.
Unfortunately, some well-intentioned Florida Republicans are pushing a measure through the state legislature that would dangerously infringe on First Amendment freedoms with features that will be used to badger conservative voices into silence.
The first thing that must be said about HB 757 and SB 1780 is that anyone who thinks that this legislation will effectively favor conservatives in their clash with establishment media is going to be deeply disappointed.
The bill, as should be obvious, does not — and, from a constitutional perspective, cannot — do any such thing. The tools and mechanisms in the law are ideologically neutral. The political left has equal opportunity to seek to punish and suppress speech found to be unfavorable to their respective causes. One of the key Supreme Court holdings on the First Amendment is that different legal standards based on the content of the message are unconstitutional. What’s good for the goose is good for the gander.
While there are many problems with this bill, I want to focus on what I believe to be the measure’s single most dangerous aspect. It creates an expedited process allowing defamation plaintiffs to obtain a rapid determination on two key questions: (1) whether their challenged statements are statements of fact or of opinion; and (2) whether the statements of fact are true or false.
There is some merit in seeking to settle these issues quickly. However, there is a huge price to pay for this kind of judicial rapidity. First and foremost, judges are the ones who make these expedited decisions. The defendant loses the right to a jury trial on the question of the truth of the allegedly defamatory statement. Juries are supposed to be the triers of all facts in a case. Moreover, the right to discovery is necessarily very limited when an expedited timeframe is imposed with regard to such an important question.
While the authors of the legislation likely had in mind the ability of defamation victims to seek swift justice, there is a very real possibility that it will be used far more often and successfully by major media defendants looking to quickly protect themselves from liability.
In the mountains of data routinely kept by media giants, there may well be evidence that could help the plaintiff prove that the statements made against him were false, assuming his lawyers had enough time to comb through all those files. But, under the Florida bill, big media defendants and their huge law firms could file a motion for a truth or falsity determination which must be heard within 60 days.
On the other hand, a small media outlet, like the thousands of broadcasters who are members of National Religious Broadcasters, might find themselves facing down a powerful politician who wants to silence them, and they may not have the time or the financial resources to dig through all of the politician’s files. He can simply bury them in paperwork and run out the clock.
This hurry-up procedure protects the powerful and hurts the little guy on both sides of this kind of litigation.
In addition, this provision comes with an attorney’s fee provision that is very rare in American law. The losing party in the expedited hearing must pay the attorney’s fees of the winning party.
Ideally, this policy would allow defamation victims to seek justice without worrying about the costs. But in reality, it could end up working against the rights of victims — the very people the bill seeks to help.
Many times horrible things are said about a person in a manner that seems like a statement of fact to one person but is ultimately held to be a statement of opinion. A Florida Court of Appeals held that a statement by a hospital supervisor that an employee “was an alcoholic and needed to retire” was a statement of opinion and the defamation claim failed.
This kind of statement is a close call. A plaintiff who felt defamed by being called an alcoholic could lose their case and then be required to pay the employer’s attorney’s fees — which would be financially crippling — if the judge determines that it was a statement of opinion.
Good intentions do not justify the passage of this very flawed legislation. If it passes, the result will be increased timidity by broadcasters and publishers — especially by small outlets like most members of National Religious Broadcasters.
Michael Farris is General Counsel of National Religious Broadcasters, which is the world’s largest association of Christian communicators. NRB represents many Christian media outlets.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.